Jim Porter: This author's marvelous piece of creative writing

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TRUCKEE, Calif. - The centerpiece of today's Law Review is Federal District Judge William Alsup. In a marvelous piece of creative writing, if I don't say so myself, we are combining Judge Alsup's: (1) recent Opinion partially certifying a class action lawsuit against Kmart, and (2) reviewing his superbly written historical book: "Missing in the Minarets - the Search for Walter A. Starr, Jr."

Let's do the boring stuff first - class action.

Kmart Cashiers

Lisa Garvey, who worked as a seasonal cashier in the Tulare Kmart store for a mere two months in 2010, received a letter/newsletter from a well-known attorney who represents employees suing California businesses.

Garvey subsequently hired the lawyer and sued Kmart - on behalf of all employees working in the Tulare Kmart and in Kmarts throughout California - for a violation of California Wage Order 7-2001(14). Order 14 requires that all working employees be provided with seats "when the nature of the work reasonably permits the use of seats." According to the lawsuit, Garvey's attorney has filed 14 other "suitable-seating" suits against California retailers. Her suit came before District Judge Alsup.

Class Certification

Garvey's attorney argued the suit was appropriate for class certification as there were 71 individuals employed in similar roles as cashiers at the Tulare Kmart. And, the facts were common and typical among all Kmart cashiers in California, such that the class should include all of Kmart's California cashiers. All should be able to sit on the job.

Troubling Aspect

One portion of the Opinion in particular troubled me. In support of Kmart's contention that Garvey's attorney had filed 14 other employees-must-be-provided-seats lawsuits in California, Kmart quoted parts of a deposition of Garvey's purported expert witness, who stated Garvey's attorney and "some other attorneys ... were having a discussion just batting around some ideas about, you know, different areas of law that, you know, might be developed further ... I said that the [Department of Labor Standards Enforcement] never had the resources to really enforce the seating requirements ... that it would be an area that could be enforced by private litigants."

If you believe that deposition, it certainly gives the unsavory appearance that Garvey's lawyer and others were sitting around looking for, if not concocting, litigation opportunities. That probably comes as a surprise.

Tulare Kmart

In the end, Judge Alsup ruled the Tulare Kmart cashiers (but only Tulare) could proceed in a class action to determine whether the nature of their cashier work reasonably permitted the use of seats. So, when you are next shopping at Kmart (or any similar store) if you see cashiers sitting, you'll know who won this case.

Missing in the Minarets

The other more interesting piece of writing from Judge Alsup unrelated to the Kmart case, is his book Missing in the Minarets, a gripping reconstruction of a highly publicized search for Walter "Peter" Starr, a prominent San Francisco attorney who in July of 1933 went missing after setting off solo to climb in the rugged Minarets region in the Sierra Nevada. The book includes photos from Starr's Kodak camera found at the scene. Starr wrote "Starr's Guide to the John Muir Trail and High Sierra Region."

The searchers included world class climbers like Norman Clyde who ultimately found Starr. It included the first search ever from an airplane - by a family friend and president of the Sierra Club - Francis Farguhar.

Local Connection

By the way, Starr's niece is our very own local Eddy Ancinas. I was so entertained by Missing in the Minarets that I asked Judge Alsup to speak to our local Tahoe Truckee Bar Association. He graciously accepted and recounted the fascinating story of the search. Good quick-read even if you are not a climber.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He may be reached at porter@portersimon.com or at the firm's website www.portersimon.com.